The dean of Washington State University libraries says he will add to the system’s collection a book that criticizes WSU administrators from 2005 to 2015 for violating the free-speech rights of students and faculty.

The action ends a 15-month-long ban on the title.

Jay Starratt made the decision on Wednesday shortly after former WSU journalism professor David Demers distributed to hundreds of organizations and professors a news release that criticized WSU libraries for banning his 2015 book, The Lonely Activist: An American Odyssey [see original news release at bottom of this message]. Demers gave Starratt and two other WSU officials two days notice before sending out the news release. They declined to comment.

But late Wednesday morning, Starratt notified Demers in an e-mail of his decision to add the book to WSU’s stacks.*

“I am pleased the university is finally taking ownership of its checkered history on free speech,” said Demers, who, as a faculty member, also was prohibited at one point from speaking to the university’s Faculty Senate. “Now it’s time for the university to correct some of the current problems — to ban or change three policies that currently violate or fail to protect the free-speech and due-process rights of faculty and students.”

First, Demers said, the university must eliminate a clause in the Faculty Manual that gives administrators the authority to terminate faculty who receive two or more unsatisfactory ratings in annual reviews. He said the WSU provost’s office has used that clause for many years to fire tenured faculty or force them to resign.

“That clause violates American Association of University Professor guidelines, which state that annual reviews should not be used to terminate faculty, because of the danger reviews pose to academic freedom and shared governance,” Demers said.

The university, for example, used that clause against Demers after he proposed a controversial 7-Step Plan to improve the quality of the Edward R. Murrow College of Communication. The Ninth Circuit Court of Appeals ruled in 2014 (Demers v. Austin, et al.) that the First Amendment protects Demers’ plan as well as other comments and proposals faculty make on issues of public concern while serving on university committees.

“The second policy change involves the wording of the university’s Strategic Plan, which currently fails to protect speech on campus that is not ‘constructive’ or ‘civil.’” Demers said the courts have consistently protected uncivil speech as long as it doesn’t involve violent action. The language of the Strategic Plan can be corrected simply by stating that the university “encourages” — but does not require — civil speech, he said.

“The third change needed,” Demers said, “is more due-process protection for faculty who receive below-average ratings in their annual reviews. There is no independent appeal’s process for aggrieved faculty once the provost has ruled. Although the Faculty Status Committee has the authority to hear such cases, it is not required to hear such cases and has no authority to enforce its decisions.”

Demers added that the committee refused to hear his appeal because its chair at the time said the committee was too busy handling tenure-denial cases. That decision forced Demers to file a lawsuit in federal court, which ended up costing the university somewhere between a half-a-million and a million dollars in fees, settlement costs and lost work hours.

Demers recommended created a separate committee composed of faculty, administrators and the public to hear annual review appeals. “None of the three groups should consist of a majority,” he said. The committee should also have the authority to enforce its rulings, he said.

Demers said responsibility for seeing that these changes are made rests with the office of the newly appointed President Kirk Schulz. Demers said he will post updates on his civil liberties website (www.acfcl.org ) as he tracks changes (or absence thereof) taking place at the university.

For more details about the free-speech and termination problems at WSU, see The Lonely Activist, which is available as a free PDF online at www.acfcl.org/lonelyactivist.html .

__________________

*In an e-mail to Demers on Wednesday, Starratt said, “I want to let you know that we will be adding your book to the collection. I actually had it on my desk [since last August] and was reading it as I had a minute or two. It is like three books in one. I am afraid I thought it was for me and so I was taking my time. I hope you are doing well and do not miss this winter. –Jay.”

Demers said he lauds the decision to add his book to the collection, “but Starratt’s excuse for not putting the book into WSU’s collection is not consistent with the facts.” A note attached to the book he sent to Dean Starratt specifically stated that Demers had previously tried unsuccessfully to get the book placed into the library and that he was sending this copy to Starratt to solve the problem.

Demers also said that neither Starratt nor other administrators questioned the veracity of the original news release, which accused the university of banning the book. “They never questioned the original news release because they never planned on putting the book into WSU’s stacks,” Demers said.

The book is currently available at numerous libraries, including University of Washington, Eastern Washington University, Harvard University, University of Minnesota and The Ohio State University. Only one copy was sent to each of these libraries, and the books were available within a month of the mailing, Demers said.

The original news release follows:

For immediate release Wednesday (1/18/17)

WSU Bans Book Critical of Its Free-Speech Record

University’s Strategic Plan Also Violates the First Amendment, Ex-Professor Argues

Washington State University’s library system has banned a book that criticizes university administrators for violating the free-speech rights of faculty and students on a half dozen occasions between 2005 and 2015.

The 544-page book — titled The Lonely Activist: An American Odyssey — was written by former tenured WSU journalism professor Dr. David K. Demers, who sued the university in 2009 when it attempted to punish him for offering a 7-Step Plan in 2007 to improve the quality of the Edward R. Murrow College of Communication.

The Ninth Circuit Court of Appeals ruled in 2014 that the plan was protected speech under the First Amendment. WSU declined to appeal to the U.S. Supreme Court and the case was settled later that year, when the university paid Demers $120,000 in attorney’s fees. The Lonely Activist contains an extensive history of the case and its impact on universities.

During the past year, Demers said he mailed two copies of the book to “acquisitions” at the WSU library and one copy directly to Jay Starratt, dean of the libraries. All three books were delivered, according to U.S. Postal Service records. In the August 2016 mailing to Starratt, Demers included a letter in which he noted the problems he had been having in getting the book placed in the WSU library system. Starratt did not respond.

The book is available in libraries at Eastern Washington University, University of Washington, Harvard University, University of Minnesota, and The Ohio State University.

“Some WSU administrators clearly don’t get it,” Demers said. “They should be embracing information that draws attention to past problems of free speech on campus, not banning books or promoting or rewarding administrators who in the past have shown disrespect for academic freedom and the First Amendment.”

Two days ago a copy of this news release was e-mailed to current WSU President Kirk Schulz and to Provost Daniel Bernardo and Starratt, giving them an opportunity to respond. They did not respond.

In Demers’ lawsuit (Demers v. Austin, et al., 2014, Ninth Circuit), President Elson Floyd and four administrators who were named as defendants tried to argue that faculty are not deserving of free-speech rights when they speak in their service-related or “professional” roles -- or what some legal experts call their “shared-governance roles.”

In an amicus curiae brief, the American Association of University Professors and The Thomas Jefferson Center for the Protection of Freedom of Expression argued that professors cannot do their jobs if they can be punished for speech uttered on issues of public concern during faculty and committee meetings.

In spring 2009, Floyd deliberately withheld a report from then Washington state Auditor Brian Sonntag, who concluded that an internal investigation of Demers was marred by an auditor’s conflict of the interest. Demers criticized Floyd in his book for the unethical act. The auditor continues to work at the university.

Floyd died of cancer in 2015, but vestiges of his administration continue to wield power at WSU and are still trying to force some tenured faculty from their jobs in violation of AAUP guidelines on tenure and academic freedom — another free-speech issue of concern addressed in Demers’ book.

Demers also said WSU’s current (2014-2019) strategic plan violates the First Amendment, because it only protects speech on campus that is “constructive and civil.” The courts have consistently ruled that the First also protects uncivil speech, as long as it doesn’t turn violent, he said. The previous WSU strategic plan (2008-2013) protected uncivil speech after Demers suggested to administrators in 2007 that the language be changed to “encouraging,” but not requiring, civil speech.

“Somehow that word (encouraging) got dropped from the current strategic plan,” Demers said.

Demers taught at WSU for 16 years before retiring in 2013. He lives in Phoenix and writes about free speech and civil liberties issues. A free PDF download of The Lonely Activist is available at www.acfcl.org/lonelyactivist.html.

A nonpartisan bill that would have expanded free-speech rights to college professors and graduate students at public universities and to whistleblowers in Washington state will not be introduced this year, according to state Sen. Mike Padden, its sponsor.

The bill, which was drafted by the nonprofit, nonpartisan Foundation for Individual Rights in Education (www.thefire.org), would protect "public expression related to any matter of social, political, economic, or other interest."

Currently, government-employed whistleblowers who are not professors have no First Amendment protection for on-the-job speech and can be punished or fired even if they find public employees engaged in criminal wrongdoing.

Professors enjoy more free-speech protection under the 2014 Ninth Circuit Court of Appeals ruling in Demers* v. Austin et al. (click, at left, "Latest on WSU Lawsuit" for more details), which held that Washington State University administrators cannot punish professors when their speech involves an issue of public concern and is related to teaching or scholarship/research.

FIRE’s bill would basically extend free-speech protection to any form of expression — it need not involve an issue of public concern or be related to teaching or scholarship. Currently, professors can be punished or fired for criticizing administrators on such matters as budgets, funding proposals, hiring decisions and internal administrative policies.The bill was drafted in part to counter the U.S. Supreme Court’s anti-free speech ruling in Garcetti v. Ceballos (2006). On a five-to-four vote, the court ruled that public employees do not deserve free-speech rights when it comes to job-related speech. The logic was that too much free speech interferes with the power of governmental administrators do their job efficiently.

But two of the justices noted that Garcetti may not apply to faculty at public institutions, because the work they do (the search for truth and knowledge) is crucial to a democratic system, and to punish faculty for such speech is akin to destroying the function of a public university.

Since then, federal courts have consistently ruled against professors for on-the-job speech except in Demers v. Austin, where the Ninth Circuit explicitly exempted professors for speech on public issues related to teaching or scholarship.

But Demers does not protect all speech. For example, it is highly unlikely that faculty would get First Amendment protection if they criticize an administrator for hiring too many adjuncts or for criticizing the way money is spent.

FIRE’s bill would protect that speech as well as provide protection for whistleblowers in all levels of government.

Padden, a Republican, is chair of the legislatures Law & Justice Committee and vice chair of the Accountability & Reform Committee. He could not be reached for comment, but it is expected he will introduce the bill next year. Supporters of the bill point out that it appeals to both conservatives and liberals, because both groups are concerned with protecting unpopular ideas.

ACFCL supports the bill. It's not known whether university administrators will support the bill.

Ninth Circuit Order Encourages Trial Attorneys to Buy Homes Next to Federal JudgesNonparody Backstory: Is Judge Thomas' Standard for 'Impropriety' Out of Step with Public Standards?

Trial attorneys across the country are reportedly purchasing hundreds of homes next door to federal judges after Ninth Circuit Court of Appeals Chief Judge Sidney Runyan Thomas issued an order March 14 saying judges do not have to recuse themselves from cases when one of the client’s attorneys lives next door to them.

"I just purchased the home next door to Judge Thomas," said one attorney, who owns a large law firm but did not want to be identified. "Of course, I will never bribe the judge, but I certainly will mow his grass, wash his car and invite him over to dinner as often as I can. I think it is important to be a good neighbor, even if I never have to appear before his court."

The Federal Trial Attorneys for Injustice heralded the decision, saying in a prepared statement: "Anything to bring attorneys, clients and judges closer together is a win for all of those parties. We’ve always argued that judicial independence is overrated. Next year, we are going to ask the Ninth Circuit to give judges permission to sleep with attorneys and clients who have cases pending before them. After all, judges should have a right to associate with whomever they wish."

The Nonparody Back Story

Thomas, who is Chief Judge of the Ninth Circuit, issued the order in response to a COMPLAINT filed against Idaho Federal District Court Judge B. Lynn Winmill of Pocatello, who presided over a civil liberties lawsuit in which his attorney neighbor defended Idaho State University. Winmill also graduated from ISU and taught there as an adjunct professor.

The Complaint of Judicial Misconduct (No. 15-90074) was filed in April 2015 by Dr. Habib Sadid, a former ISU professor of engineering, who had brought a federal civil liberties lawsuit in 2011 against the university, which fired him in part for criticizing the university’s unpopular president. Sadid eventually settled the case out of court.

Sadid’s misconduct complaint asserted that "Judge Winmill’s close association to Idaho State University and one of its contract attorneys, ... , who lives in the home next door to the judge, creates the appearance of impropriety as articulated in ... the Code of Conduct for United States Judges."

The Idaho State Journal in spring 2015 identified the attorney-neighbor as John A. Bailey Jr. of Pocatello.

Bailey and his law firm represented Idaho State University and various ISU officials in at least two other lawsuits that came before Judge Winmill. In all three cases, Judge Winmill issued decisions and rulings that favored ISU and its law firm.

Although Sadid’s complaint points out that it is not unusual for a federal or state judge to know or even be friends with an attorney who has a client in a case pending before the judge, "when the attorney lives next door to a judge, the level of concern increases. As one legal observer put it: ‘Who (what judge) wants to live next door to a neighbor who might be angry at you for years over a decision you make?’"

"The attorney and judge are next door neighbors. But on its own, having an attorney as a neighbor does not create the appearance of impropriety."

Sadid’s complaint didn’t dispute that argument.

But Sadid’s complaint pointed out that Judge Winmill had four other close ties to the university that "create an appearance of impropriety": Winmill graduated from the university; he was a director on the ISU Alumni Board of Directors for four years while Sadid’s lawsuit was in progress; he was the recipient of a major fraternity award; and he taught courses there as an adjunct professor for four years.

By way of comparison, a federal judge in Spokane, Washington, recused himself in 2009 from one lawsuit simply because he had graduated from Washington State University, which was a defendant in a lawsuit.

"By themselves," Sadid’s complaint stated, "most of the five associations between Judge B. Lynn Winmill and Idaho State University probably would not raise concerns about the independence of a judge. However, living next door to an attorney is a far more serious concern than the other four associations, and when all five are taken together, a reasonable attorney and citizen would conclude that the appearance of impropriety exists."

"Judge Thomas’ order failed to account the cumulative effect of these five alleged improprieties," said Dr. David Demers, director of the American Center for Civil Liberties, a not-for-profit organization that promotes civil liberties and helps professors who the subjects of workplace mobbing. Demers also helped Sadid write up the ethics complaint against Winmill.

"Some judges are out of touch with the views of average Americans," Demers said. "What attorney or litigant would want a judge with such baggage to rule on his or her case?"

Winmill never informed Sadid or his attorney that he lived next door to the ISU attorney. Sadid learned about the neighbor relationship several years after he filed the lawsuit, when a real estate agent mentioned it during a casual conversation.

On March 14, 2014, at the settlement hearing, Sadid said he confronted Winmill with that fact, who responded, "Go file a complaint against me."

Demers said Sadid wasn’t the only litigant concerned about Winmill’s independence.

When Demers asked an attorney who represented a client suing ISU in a separate lawsuit whether he would be concerned to learn that the judge and ISU attorney were neighbors, he responded: "Of course I would. There is a big difference between being friends with a judge, which is not grounds for recusal, and living next door to a judge. ‘Who (what judge) wants to live next door to a neighbor who might be angry at you for years over a decision you make?’"

"Winmill should have informed Sadid and his attorney of his relationship to the ISU attorney and the university, and Thomas’ order should have directed all judges to be open about potential conflicts of interest," Demers said. "All parties to a lawsuit should have an opportunity to challenge the independence of a judge before, not after, the lawsuit is in progress. Thomas' order reflects a defensiveness that feeds into Americans' distrust of their political institutions."

Sadid was a "distinguished" tenured professor of civil engineering who — despite earning high marks from administrators for teaching, research and service — was fired from Idaho State University in 2009 for criticizing the policies of ISU President Arthur C. Vailas.

Sadid filed the federal lawsuit in 2011. He settled the case in spring 2014, but he says he was coerced into the settlement. His attorney, Ronaldo E. Coulter of Eagle, Idaho, who collected nearly $400,000 in attorney fees from Sadid and a teacher’s association, asked the judge to excuse him from the case just before trial. Winmill eventually granted the request.

Under Ninth Circuit rules, Sadid can appeal Thomas’ order. Sadid said he will make a decision within the next month.

That’s the amount of time that has elapsed since a former Idaho State University professor filed a judicial misconduct complaint against an Idaho federal judge who lived next door to an attorney who represented the university in at least three lawsuits brought before the judge.

"I have written and called the Ninth Circuit Court of Appeals to get an update on my complaint against U.S. District Court Chief Judge B. Lynn Winmill, but no one is responding," said Dr. Habib Sadid, who filed the complaint in April 2015. "I know court systems are overburdened, but you would think that an accusation of misconduct against a federal judge would be taken more seriously, since the accused judge may be presiding over other cases in which he has a conflict of interest."

American Center for Civil Liberties director Dr. David Demers, who helped Sadid write up the complaint, said the lack of prompt response from the court may very well stem from lack of investigatory resources.

"But it also may stem from a conflict of interest that inherently affects all cases in which court systems investigate one of their own," he added. "How can anyone be assured that any public institution which investigates itself is going to arrive at the truth, especially because Winmill and other judges often serve with each other on the investigatory panels? The answer is that the public cannot be assured the process is fair without public oversight, which currently does not exist."

Demers said professional groups, like doctors and lawyers, historically have asserted that only they deserve the authority to police their colleagues.

"But it’s different when a public institution is involved," said Demers. "There should be more public oversight. But, as it stands now, no one knows what happens during investigations of judges except those doing the investigations themselves. That’s not how a democracy is intended to work."

Sadid’s complaint alleges that "Judge Winmill’s close association to Idaho State University and one of its contract attorneys, John Doe (name omitted from this story to protect the home address of the judge), who lives in the home next door to the judge, creates the appearance of impropriety as articulated in ... the Code of Conduct for United States Judges."

Attorney John Doe and his law firm represented Idaho State University and various ISU officials in at least three separate lawsuits that came before Judge Winmill, including one brought by Sadid against the university in 2011. Judge Winmill issued decisions and rulings in all three cases that favored the clients represented by the attorney neighbor and his law firm.

Although Sadid’s complaint points out that it is not unusual for a federal or state judge to know or even be friends with an attorney who has a client in a case pending before the judge, "when the attorney lives next door to a judge, the level of concern increases. ... ‘Who wants to live next door to a neighbor who might be angry at you for years over a decision you make?’"

Sadid’s complaint also points out that Judge Winmill has four other close ties to the university, including his role as a director on the ISU Alumni Board of Directors for several years. These associations with ISU do "not prove that an impropriety occurred," the complaint adds. "But, again, it heightens the perception that one might have occurred."

Sadid was a "distinguished" professor of civil engineering who — despite earning high marks from administrators for teaching, research and service — was fired from Idaho State University in 2009 for criticizing the policies of ISU President Arthur C. Vailas. The firing came a year after Sadid filed a separate state lawsuit accusing the administration of retaliation for his criticism.

Sadid settled the federal lawsuit against ISU officials, but he says he was coerced into the settlement. His attorney, Ronaldo E. Coulter of Eagle, Idaho, who collected nearly $400,000 in attorney fees from Sadid and a teacher’s association, asked the judge to excuse him from the case just before trial. Winmill eventually granted the request.

The Ninth Circuit Court of Appeals website indicates that many other complaints filed against judges after Sadid filed his have been investigated and closed. A misconduct ruling normally does not allow aggrieved parties to collect damages from judges. Evidence of criminal misconduct and/or intent to defraud litigants would be necessary.

WSU Accused of Violating American Association of University Professors’ Guidelines

Some gardeners and academics are reacting with outrage to the news that Washington State University administrators are trying to fire a highly popular tenured extension professor, especially because they are doing so under a policy that violates guidelines established by the American Association of University Professors.

The target of termination is Dr. Linda Chalker-Scott, an associate professor in the Department of Horticulture who has written several popular books on gardening and is co-founder of Garden Professors, a 4,900-member Facebook group.

“Linda is doing and has done more to further the mission of extension (providing accurate gardening information to the public) than any other extension person in the U.S. — no contest!” posted gardening administrators at GardenRant.com. “That’s in addition to work at the state and campus level that we don’t hear about.”

“I was appalled to read this,” posted Jody, a GardenRant user. “Linda provides an enormous service to not just gardeners in the United States, but far beyond, including here in NS (Nova Scotia) ... .”

“Unbelievable!” a gardener named Layanee posted to the site. “LCS is a maverick in her field and perhaps that is the problem that WSU has with her work. Universities are driven by politics. I too am appalled at WSU’s reaction to her commitment to accurate and thorough information.”

“Academic freedom does not exist at universities,” Benjamin Voigt wrote in defense of Chalker-Scott. “Those days are long gone. They are businesses now.”

According to documents and information posted at the GardenRant website (see link at end of this article), Dr. Erica Austin, interim co-provost and a professor of communication at WSU, accused Chalker-Scott of failing to meet performance expectations, including failing to develop an applied research program, failing to generate enough research grant monies, and failing to publish in refereed journals.

However, information posted at the GardenRant website shows that in 2015 alone, Chalker-Scott spoke at 26 seminars, published two refereed journal articles, got a third refereed article accepted for publication, wrote and obtained a publisher for another book titled Gardening with Northwest Native Plants, created a curricular module for Master Naturalist certification, wrote articles for and was a contributing editor at Fine Gardening and associate editor for the peer-reviewed journal Horticulture. In addition, Science Citations reported that in 2015 her work was cited 89 times by other scholars, bringing her lifetime total to 904 citations.

Chalker-Scott told GardenRant that she believes the university is trying to fire her in part because it wants to hire a faculty member who will generate more grant money. Chalker-Scott’s original job description did not require her to raise grant funds; however, in 2015, she nonetheless brought in nearly $90,000 in grant, donation and contract money and submitted three more grants totaling more than $130,000. The university’s attempt to punish Chalker-Scott may violate contract law.

But even if the evidence somehow showed that Chalker-Scott was failing to perform adequately, the university is still violating guidelines established by the American Association of University Professors, according to Dr. David Demers, director of the American Center for Civil Liberties and a former WSU professor.

“AAUP has made it very clear that it is inappropriate for university administrators to terminate tenured faculty through annual reviews and especially to do so without the assistance of a faculty-elected committee to oversee the administrative process,” Demers said. “WSU is violating both of those guidelines, even though the WSU Faculty Manual specifically says the university ‘subscribes to’ AAUP principles on academic freedom and tenure. What’s more, you’d think the university would know better after a federal appeals court two years ago chastised it for trying to argue that faculty do not deserve free-speech rights when criticizing administrators on public matters related to teaching or scholarship.”

Demers was the plaintiff in that case; Austin, the interim provost, was the lead defendant and, at the time, interim dean of the Murrow College.

The Ninth Circuit Court of Appeals ruled in Demers v. Austin et al. (2014) that a 7-Step Plan Demers had created to improve the quality of the Edward R. Murrow College of Communication was protected speech. WSU President Elson Floyd’s administration, Austin and three other defendants tried but failed to convince the court that faculty do not deserve First Amendment rights when speaking in their “professional” or service-related roles. Floyd died in 2015.

“WSU has a history of violating First Amendment rights of students and faculty,” Demers said. “That history was posted at the university’s Wikipedia listing until sometime in 2015, when someone deleted it.”

“Administrative bullying doesn’t happen at the University of Washington or the University of Oregon because those universities have a strong commitment to academic freedom and free speech,” Demers said. “But at WSU, administrators who lack that commitment seem to be the ones who are promoted. Let’s hope the next president of WSU will demonstrate a real commitment to the First Amendment and eliminate the regressive termination policy and install administrators who respect the principle of academic freedom.”

University officials have refused to divulge the numbers of tenured faculty they have fired during the past decade. In 2010, a high-ranking WSU official acknowledged that it was somewhere between five and ten.

Demers resigned from his position in 2012 to spend more time writing. He dropped the lawsuit in 2014, after the Appeals Court issued its ruling and after the university paid his attorneys $120,000.

Lawrence Pintak — the dean of Washington State University’s Edward R. Murrow College of Communication who refused to defend a faculty member who eventually obtained a favorable federal appeals court First Amendment ruling against WSU administrators — is resigning from his administrative position.

“It’s not unusual for high-ranking academic journalism administrators to abandon journalism ideals and side with anti-free-speech administrators,” said David Demers, the WSU faculty member who sued WSU officials for violating his free-speech rights. “It also happened at the University of Oregon, University of North Carolina, and University of Wisconsin-River Falls. The lure of power, status and money, or fear, or just wanting to be accepted by your superordinates often leads people to do things they might not do under other circumstances.”

Details of these cases are contained in a free book Demers published in 2015: The Lonely Activist: An American Odyssey. A PDF is available at www.acfcl.org/lonelyactivist.html.

WSU hired Pintak in 2009, a year after the Murrow program was turned into a college. At the time, Demers was an associate professor in the journalism program and had been targeted for dismissal by former interim Dean Erica Austin, even though he was one of the most published scholars in the program and had high teaching evaluations. Austin also applied for the permanent dean’s position but lost to Pintak.

Demers filed a federal First Amendment lawsuit in fall 2009, shortly after Pintak’s arrival. The lawsuit contended that WSU officials were punishing him in annual reviews because he had written a controversial 7-Step Plan to improve the quality of the Murrow programs and because he had written a book that, among other things, criticized WSU officials for under-funding the Murrow program.

The administration of late President Elson Floyd argued in court that faculty did not deserve free-speech right when speaking in their “professional” or service-related roles, even if the speech involves matters of public concern related to teaching or scholarship.

In 2014, the Ninth Circuit Court of Appeals disagreed and ruled that Demers’ 7-Step Plan was protected speech because it was related to teaching. The university declined to appeal to the U.S. Supreme Court and nine months later paid $120,000 to Demers’ attorneys. Demers, who had left the university in late 2012 in part to pursue a full-time writing career, dropped the lawsuit.

According to a news release from WSU, Pintak, who will continue as a professor in the Murrow program, is resigning from the dean’s position at the end of spring semester 2016 “to begin a year of research and reporting about Islam and the U.S. presidential election.”

Austin eventually was promoted to an associate provost position and currently is an interim co-provost. There is no evidence to suggest that Austin played a role in Pintak’s decision to resign.

The Chronicle of Higher Education censored the short commentary below, which was made in response to a commentary by Kevin Carey in the January 15, 2016, issue, titled "Academic Freedom Has Limits: Where They Are Isn't Always Clear."

By David Demers

The biggest threat to academic freedom, in my opinion, are university rules that allow administrators to fire tenured faculty for getting low performance ratings two or three years in a row. This Faculty Manual policy violates American Association of University Professor guidelines designed to protect unorthodox ideas, but that hasn't stopped Washington State University from firing a number of tenured faculty during the past two decades, and the university is currently trying to fire additional tenured faculty under the policy. This policy continues at WSU in part because the WSU Faculty Senate leadership has failed to call for an end to the practice.

For Immediate Release

WSU Still ‘Firing’ Tenured Faculty in Violation of AAUP Guidelines

PHOENIX -- Washington State University administrators are still forcing some tenured faculty to resign even though it was pointed out five years ago that the termination policy violates American Association of University Professors’ guidelines, the American Center for Civil Liberties has learned.

One WSU administrator even boasted at a faculty meeting that he had been able to get rid of all faculty in his program who disagreed with his policies. That administrator subsequently was promoted to an even higher-ranking position at the university.

“What kind of freedom of speech is that?” asked one faculty member familiar with events at the meeting but who wished to remain anonymous. “Aren’t universities supposed to be open to different points of view?”

At least two faculty were forced out between 2011 and 2013, and at least one faculty member is currently being threatened with dismissal. The numbers are probably much higher, though, because targeted faculty generally are afraid of being blacklisted and stigmatized, said Dr. David Demers, director of ACFCL and a former mass communication professor at WSU.

All the targeted faculty were vocal critics of WSU administrative policies and actions, Demers said.

“WSU has a history of violating free-speech rights of students and faculty,” said Dr. David Demers, who filed a federal First Amendment lawsuit against the university in 2009.

The Ninth Circuit Court of Appeals ruled that Demers’ 7-Step Plan for improving the quality of the Edward R. Murrow School (now a College) of Communication was protected speech under the First Amendment. The late WSU President Elson Floyd’s administration had argued in court that faculty do not deserve First Amendment protection when they speak in their service or “professional” roles — a legal position unanimously rejected by the entire appeals court.

“Floyd died in June, but the vestiges of his anti-free speech administration are still in power,” Demers said. “The administration at WSU needs new leadership. Let’s hope the next president and her or his staff has more respect for the principles of academic freedom and shared governance.”

WSU Vice Provost Frances McSweeney revealed the existence of the termination policy on September 30, 2010, when she gave a deposition in the Demers v. Austin 2009 lawsuit. She said five to ten faculty had been forced to resign.

"As I recall," McSweeney said, under oath, "in all cases, there was a discussion between the department chair and dean and the faculty member, and an agreement was reached that the faculty member would leave the university, and they were allowed to retire or resign quietly."

WSU administrators say the WSU Faculty Handbook gives them the authority to terminate faculty who are given two or three years of below-satisfactory ratings in their annual reviews.

But this policy violates AAUP guidelines.

In 1983, AAUP issued a statement that "cautioned particularly against allowing any general system of evaluation to be used as grounds for dismissal or other disciplinary sanctions."

"No procedure for evaluation of faculty should be used to weaken or undermine the principles of academic freedom and tenure,” AAUP’s website states. “The imposition of such (disciplinary) sanctions is governed by other established procedures that provide the necessary safeguards of academic due process."

Although many universities have adopted some form of post-tenure review, most do not terminate tenured faculty because of below-satisfactory annual reviews. An offense would have to be much more severe.

WSU Faculty Senate, which presumably represents the interests of faculty, has never taken a stand on the termination policy.

In his book, The Lonely Activist: An American Odyssey, Demers argues that historically the WSU Faculty Senate has identified more with the programmatic goals of the administration than with the needs and concerns of faculty. This is in stark contrast to the University of Oregon and the University of Washington, both of which have adopted strong policies protecting the free-speech and due process rights of faculty.

Four investigators for the Idaho State Bar Association have declined to sanction an Idaho attorney who in 2013 filed a defamation lawsuit against one of his own clients after a federal judge refused to approve the attorney's motion to withdraw his representation of the client just before trial.

Attorney Ronaldo A. Coulter of Eagle, Idaho, wanted to drop his client — Dr. Habib Sadid, a civil engineering professor at Idaho State University who was fired for criticizing ISU administrators' policies — in part because Coulter was afraid Sadid would not pay him for litigating Sadid's case against the university in a federal court.

U.S. District Court Judge B. Lynn Winmill changed his mind and approved Coulter’s withdrawal motion after Coulter filed a defamation lawsuit against Sadid in state court.

"Investigators for the Idaho State Bar are sending a very bad message to attorneys in the state," said Dr. David Demers, director of the American Center for Civil Liberties. "They are saying that it is OK for attorneys to abandon their clients at the 11th hour, and if judges won't let them do that, then it's OK to file a lawsuit against the client, even one with little merit. The investigators' conclusions can only have the effect of eroding public confidence in the legal profession in Idaho. That a shame for the citizens of Idaho."

Coulter filed the defamation lawsuit against Sadid in late December 2013, shortly after the Idaho State Journal in Pocatello ran a story that included critical comments Sadid had made about Coulter. Sadid told the newspaper that Coulter had negotiated a settlement with the ISU attorney without Sadid's permission and was abandoning him because Coulter was afraid he wouldn't be paid.

Coulter also told Sadid that he did not think Sadid could win his libel lawsuit against the university.

Sadid disagreed.

In his defamation lawsuit against Sadid, Coulter claimed that Sadid's remarks to the newspaper damaged his reputation. Ironically, Coulter demanded $457,051.33 in damages from Sadid, even though he believed Sadid could not pay him for his legal services.

Coulter also did not name the newspaper as a defendant.

"The failure to list the newspaper as a defendant reveals a lot about the intent of Coulter," said Demers, who helped Sadid file an ethics complaint against Coulter with the Idaho Bar. "I have never heard of a libel lawsuit where the plaintiff did not list the news media organization as a defendant, because that's where the deep pockets are. Failure to list the newspaper as a defendant strongly suggests that Coulter was less interested in protecting his reputation than in creating the appearance of conflict between him and Sadid in an effort to convince Judge Winmill to approve his motion to abandon Sadid."

If that was Coulter's intent, he succeeded.

Winmill, who had refused to approve an earlier motion from Coulter in December 2013 to allow him to withdraw as Sadid's attorney just before trial, granted Coulter's request about two months later, in early 2014. Coulter later dropped the defamation lawsuit against Sadid. Demers said the quick withdrawal of the lawsuit also reinforces the theory that Coulter was using the lawsuit as leverage for getting the judge to approve his motion to drop Sadid.

Sadid and the American Federation of Teachers paid Coulter about $400,000 over a three-year-period. The Federation pulled its funding in November 2013, about eight months after Winmill dismissed Sadid's First Amendment and due process claims against the university and limited Sadid's case to a libel claim against an ISU official.

Sadid settled his lawsuit with the university in spring 2014, but he argues that he did so under duress from the judge and attorneys. He wanted the case to go to trial, but Coulter told him that he likely would not win his case. Sadid disagreed.

Sadid filed his ethics complaint against Coulter with the Bar in late spring 2014.

On March 30, 2015, a staff investigator for the Idaho State Bar, Julia A. Crossland, concluded there was no "clear and convincing evidence" that Coulter had violated ethics rules, which prohibit attorneys from abandoning clients without just cause.

However, neither investigatory report mentioned the fact that Coulter had failed to list the Idaho State Journal as a defendant in his libel lawsuit against Sadid. The reports also failed to mention that Coulter dropped the lawsuit after Sadid settled his case with the university.

"The Idaho Bar investigatory process was very superficial," Demers said. "Moreover, the investigatory process contains a natural conflict of interest, because a ruling against an attorney also makes the entire profession look bad. The Bar should include citizens in the investigatory process. That would help create more independence of judgment."

A former Idaho State University professor Monday filed a judicial misconduct complaint against a federal judge in Idaho who lives next door to an attorney who represented the university in at least three lawsuits brought before the judge.

The complaint, filed by Dr. Habib Sadid, does not conclude that U.S. District Court Chief Judge B. Lynn Winmill of Pocatello "actually engaged in judicial misconduct."

But it does allege that "Judge Winmill’s close association to Idaho State University and one of its contract attorneys, John Doe (name omitted from this story to protect the home address of the judge), who lives in the home next door to the judge, creates the appearance of impropriety as articulated in ... the Code of Conduct for United States Judges."

The Code states that a judge should avoid not only impropriety, but "the appearance of impropriety in all activities" and "act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."

An "appearance of impropriety occurs when reasonable minds ... would conclude that the judge’s honesty, integrity, impartiality ... to serve as a judge is impaired. ... A judge must avoid all impropriety and appearance of impropriety."

Attorney John Doe and his law firm (name omitted) represented Idaho State University and various ISU officials in at least three separate lawsuits that came before Judge Winmill, including one brought by Sadid against the university in 2011.

Although the complaint points out that it is not unusual for a federal or state judge to know or even be friends with an attorney who has a client in a case pending before the judge, "when the attorney lives next door to a judge, the level of concern increases. As one legal observer put it, ‘Who wants to live next door to a neighbor who might be angry at you for years over a decision you make?’"

The complaint also points out that Judge Winmill has four other close ties to the university.

He earned a bachelor’s degree from ISU in 1974; he was an adjunct professor at ISU from 1991-1995; he was a member of ISU Alumni Association Board of Directors from 2009 to 2013; and he received a Statesman of the Year Award from the ISU honorary Political Science Fraternity, Pi Sigma Alpha, in 2000.

"By themselves, most of the five associations between Judge B. Lynn Winmill and Idaho State University probably would not raise concerns about the independence of a judge," the complaint states. "However, living next door to an attorney is a far more serious concern than the other four associations, and when all five are taken together, a reasonable attorney and citizen would conclude that the appearance of impropriety exists."

As a point of comparison, a federal district court judge in Spokane in 2009 recused himself from a case in which Washington State University was a defendant simply because he was a graduate of WSU.

The complaint also points out that in all four cases, Judge Winmill issued decisions and rulings that favored the clients represented by the attorney neighbor and his law firm.

This "does not prove that an impropriety occurred," the complaint adds. "But, again, it heightens the perception that one might have occurred."

Sadid was a "distinguished" professor of civil engineering who — despite earning high marks from administrators for teaching, research and service — was fired from Idaho State University in 2009 for criticizing the policies of ISU President Arthur C. Vailas. The firing came a year after Sadid filed a separate lawsuit accusing the administration of retaliation for his criticism.

Two years after the firing, the Idaho State Board of Education, acting on the advice of President Vailas, disbanded the Faculty Senate. The action drew harsh criticism from both the American Association of University Professors and the Foundation for Individual Rights in Education.*

Vailas’ administration also refused to allow faculty to communicate with each other via e-mail list serves at the university. Former senators filed a free-speech lawsuit against the university, but Judge Winmill dismissed their case. Attorney John Doe argued the case for the university. The third lawsuit, which was filed by two students at the university, is currently still pending before Winmill’s court.

On August 1, 2014, Sadid sent an e-mail to Marci Smith, clerk of the District Court, which, among other things, pointed out that Judge Winmill lived next door to John Doe. Neither Judge Winmill nor the court responded to the "appearance of impropriety."

Sadid settled the federal lawsuit against ISU officials after his attorney, Ronaldo Coulter, filed a defamation lawsuit against him. Sadid complained that he entered into the settlement under duress, but Judge Winmill refused to reopen the case.

A separate complaint now pending before the Idaho State Bar alleges that Coulter’s libel lawsuit was a ruse, designed to get Judge Winmill to grant Coulter’s motion to end his representation of Sadid in the case because Coulter was worried he would not be paid for his services.

Sadid is working for an engineering firm in Utah.

The American Center for Civil Liberties provided assistance in developing his complaints.

For more information, contactDr. David Demers, DirectorAmerican Center for Civil Liberties509-290-9240info@acfcl.org

*President Vailas is currently trying to adopt a new constitution at the university which would eliminate shared governance.

Liberals Embrace Civil Liberties More than ConservativesSupport for, Not Opposition to,Gun Control May Be a Civil Liberty

PHOENIX — American citizens who identify themselves as liberals are far more likely than conservatives to embrace freedom and civil liberties, according to an analysis of national poll data.

"Liberals are far more tolerant of protestors and nonmainstream ideas and the people who hold and teach such ideas," said Dr. David Demers, executive director of the American Center for Civil Liberties. "Although some conservative groups contend they embrace civil liberties more than liberal groups, the data show that among American citizens in general, liberals are about 39 percent more likely to embrace civil liberties." ...

The only index in which conservatives appeared to score higher in terms of civil liberties involved questions about gun control. But Demers said this may be misleading, as fewer restrictions on owning and buying guns may actually mean less, not more, support for civil liberties.

"Support for the Second Amendment and for fewer controls on gun ownership traditionally has been interpreted as a civil liberty," Demers said. "But gun rights measures correlate negatively with other measures of civil liberties, meaning that people who support gun control also are more likely to support civil liberties. ...

The author taught at Washington State University for 16 years and was the plaintiff in a federal free-speech lawsuit (Demers v. Austin, 2014) that is the subject of this article. He is executive director of the American Center for Civil Liberties (www.acfcl.org) and author of more than a dozen books, including The Lonely Activist, a three-volume series that examines the adverse impact of conservatism and bureaucracy on commitment to civil liberties in American institutions. HLR refused to publish an earlier version of this commentary.

NOTE:Citations are available in the full article, which can be accessed by clicking the PDF icon to the right of this text. The author releases this article to the public domain. It may be copied and distributed in hard copy or electronic form, free of charge.

A COMMENTARY published in the April 2014 issue of Harvard Law Review accused the Ninth U.S. Circuit Court of Appeals of “overzealously” extending First Amendment protection to faculties at public universities when it ruled in Demers v. Austin that speech uttered when professors are serving on university committees deserves just as much protection as speech in the classroom and in scholarship.

The commentary’s conservative, anti-free-speech position surprised some civil libertarians, who are accustomed to seeing more Enlightenment-friendly sentiments flowing from the pens of Harvard Law students. In fact, until recent years, Harvard Law School was known as a “bastion” of liberalism, and it was difficult to find law students embracing a conservative viewpoint.

But conservative orthodoxy is not the main flaw in the unsigned HLR commentary. The real problem is the commentary’s failure to provide a substantive rationale for its anti-free-speech stance. It failed to answer the question: What harm, if any, is produced when faculty members are allowed to criticize administrative decisions and plans?

A separate but related problem also plagues the 2006 U.S. Supreme Court 5-4 ruling in Garcetti v. Ceballos, upon which the HLR commentary draws its inspiration. The five-member conservative majority asserted that governments are unable to function efficiently if their employees are accorded free-speech rights, but the majority offered no evidence to support this assertion. The history of decision-making in American universities, this analysis will show, debunks the inefficiency assumption.

The social impact of Demers v. Austin extends far beyond the Ninth Circuit ruling that one faculty member had a right to criticize administrative policies and offer an alternative plan for restructuring an academic unit. The ruling implicitly provides constitutional protection for the principle of shared governance — a three-century-old tradition in the American academy that has granted faculties an active role in the management of their universities.

However, as of this writing, the Ninth Circuit ruling only applies to nine states in the west. If faculties in the other 41 states are denied the constitutional right to criticize administrators on issues of public concern, then, it is argued here, their universities will lack the resources necessary for solving social, political and economic problems. ...

To read more (including citations), click the PDF icon above on the right side of this page.

By Arthur Willner July 29, 2014Commentary from Engage: The Journal of the Federalist Society Practice GroupsVolume 15, Issue 1

The decades-long debate over whether the First Amendment protects government-employed academics whose comments fail the “political correctness” test will ultimately be resolved by the U.S. Supreme Court, but until then, free speech advocates in the U.S. Court of Appeals for the Ninth Circuit can take heart from a recent decision that upholds the rights of public employee professors to speak freely on matters of public interest.

The Ninth Circuit recently denied a petition for panel rehearing and a petition for rehearing en banc in a case, Demers v. Austin, in which it strongly affirmed the First Amendment free speech rights of faculty employed at public colleges and universities. The opinion’s robust language in support of free speech should be cause for celebration by both faculty and students on campuses, once famously regarded as the “marketplace of ideas,” where these days a purported right not to be offended is thought to trump the First Amendment right to free expression.

Washington State University Pays Professor to Drop Free-Speech Lawsuit

WSU President Covers Up State Audit Report

Washington State University is paying former journalism professor David Demers $120,000 to drop his five-year-old federal free-speech lawsuit against four WSU administrators.

“I am extremely pleased with the settlement,” Demers said. “It sends a strong message to university administrators that those who intend to violate professors’ free-speech rights will be held accountable.”

The settlement was reached after the Ninth Circuit Court of Appeals ruled late last year, and again last spring, that Demers’ “7-Step Plan” to improve the quality of the Edward R. Murrow School of Communication was speech protected under the First Amendment.

WSU President Elson Floyd’s administration argued that professors do not deserve free-speech rights when speaking in their “professional,” or service-related, roles.

The appeals court rejected that argument.

“The court ruled that, when it comes to issues involving teaching and research, professors have the right to criticize administrators and offer their own programs, plans and ideas without fear of reprisal,” Demers said.

All of the settlement funds are being used to pay Demers’ legal fees, according to the agreement.

Demers filed the lawsuit in 2009. It claimed that administrators retaliated against him in 2007 after he submitted a plan urging them to seek national accreditation for the Murrow School (now a college), to provide a stronger voice for non-tenure professional faculty, and to separate the speech communication studies program from the journalism and mass communication programs.

The separation recommendation angered many faculty and administrators. The latter ordered an internal audit of Demers and Marquette Books, his part-time book publishing business.

Although the audit failed to find evidence of criminal or ethical wrong-doing, it concluded that Demers had violated some university rules — a conclusion Demers disputed.

University administrators then denied him raises, a chance for promotion, and leadership roles on committees, according to the lawsuit.

In 2011, a federal district court judge in Spokane sided with the administration, citing a controversial 2006 U.S. Supreme Court decision (Garcetti v. Ceballos) which held that public employees have no free-speech rights when speaking in their official roles.

Demers appealed.

Citing the same U.S. Supreme Court decision, Ninth Circuit Court Judge William A. Fletcher ruled that academic freedom protects professors when they speak on “issues related to teaching or research.” The Demers case was the first time since 2006 that the federal courts protected professors for service-related speech. Those courts had ruled against professors on seven other occasions.

Demers’ lawsuit also discovered that in 2009 President Floyd asked Washington state Auditor Brian Sonntag to investigate whether the WSU internal auditor who investigated Demers had a conflict of interest. Sonntag responded with a letter stating his opinion that the university auditor had violated auditor codes of ethics.

However, Floyd refused to provide Demers a copy of the letter, Demers said, then sought mediation in an attempt to force him from his job. Mediation failed when Floyd’s administration refused to sign an agreement ensuring that any final agreement would be available for public inspection, Demers added.

WSU agreed to settle the case after the assistant state attorney handling the case was reassigned to another job. Judy Endejan of Graham & Dunn of Seattle represented Demers in the case. She has since joined the law firm of Garvey Schubert Barer of Seattle, which gave Demers free legal advice during the latter stages of the lawsuit.

Demers resigned from WSU in December 2012 to promote civil liberty causes and to spend more time writing and publishing books, including one that explores declining commitment to civil liberties among universities and other bureaucratic organizations. He taught a course on media law at Arizona State University in fall 2013.

Legal bills of $350,000 in his case forced Demers to file bankruptcy in spring 2014. The U.S. Bankruptcy Court approved the settlement agreement on October 23.

Demers moved his family to Arizona in summer 2014.

The Murrow College is still not accredited.

-30-

For more information, contact

Dr. David Demers

American Center for Civil Liberties

16421 North 31st Avenue

Phoenix, Arizona 85053

509-290-9240

info@acfcl.org

www.acfcl.org

Can Attorneys Abandon You at the 11th Hour?

Note: The American Center for Civil Liberties is monitoring a case in which an attorney abandoned his plaintiff client on the day of his trial. The names are being withheld pending the results of a State Bar investigation. Below are general details of the case. ACFCL will keep you posted.

The public institution where you work has fired you for speaking out on a controversial issue. It has accused you of being a threat to other people, but it has no evidence to back that up.

You file federal and state lawsuits with free-speech and defamation claims. You pay nearly $150,000 in fees to your attorney. A union kicks in another $250,000. The attorney modifies the agreement and now, in addition to getting paid by the hour, he will take 40% of any damages or settlement in the case. You reluctantly sign the new payment agreement because you can't afford to hire another attorney.

A federal judge dismisses your free-speech claims but allows the defamation claim to proceed to trial. A week before your trial, your attorney finds out that the union won't pay any more legal fees. Your attorney is worried about getting paid. He's also worried about losing the case.

Your attorney asks the judge to allow him to withdraw as your attorney. The judge refuses, saying the action would harm you, the client. Abandoning clients at the 11th hour normally violates State Bar codes of ethics.

Your attorney is angry. On the day of the trial, he negotiates a nominal settlement with the defendants' attorney without your knowledge or permission. The trial is halted. The judge initially believes you agree with the settlement. You don't and complain but are chided for contacting the court directly without going through your attorney.

You also complain to a major newspaper, pointing out that your attorney abandoned you at the 11th hour. Of course, you don't want this guy representing you, but now all the money you spent is going down the drain because you can't afford to hire another attorney.

Two weeks after your trial was canceled, your attorney files a defamation lawsuit against you, citing the newspaper articles. But your attorney fails to name the newspaper as a defendant. His motive is clear: He wants to enhance the illusion of conflict between you and him so the judge will grant his motion to withdraw as your attorney.

The federal judge in the case schedules a conference phone call with all parties. He says he is aware of the defamation lawsuit that your attorney filed against you and will grant your attorney's motion to withdraw as your counsel. His order says he bases the decision on a "Memorandum Order," but the MO doesn't exist. The judge eventually apologizes but doesn't provide a full explanation justifying his decision to grant the order to release your attorney from his obligations to you.

You are unable to secure another attorney and have no other option than to settle with your employer. Your former attorney has the gall to ask you for 40% of the settlement, even though he no longer represents you.

You file a complaint with the State Bar association.

Have you been screwed over by your attorney and the U.S. system of justice?

Stay tuned for more on this case.

The American Center for Civil Liberties is a non-partisan, not-for-profit organization dedicated to promoting civil liberties articulated during the Age of Enlightenment and codified in the U.S. Constitution and Bill of Rights. These liberties include freedom of expression, due process, democracy, freedom of religion, right to association, individualism, academic freedom, accountability in government, shared governance in universities, and social, political and economic equity. The Center accomplishes this mission through the dissemination of information and knowledge to the public and to university scholars. The Center does NOT accept donations and provides all services free of charge.

The Ninth Circuit U.S. Court of Appeals this week denied a second appeal from four Washington State University administrators who wanted the authority to discipline professors who offer alternative plans for restructuring an academic program.

In November, WSU asked the full court to rehear the case after a three-judge panel, led by William A. Fletcher, ruled Sept. 4, 2013, that a 7-Step Plan for improving the Edward R. Murrow School (now a College) of Communication, created in 2007 by then-tenured-associate professor David Demers, deserved First Amendment protection.

In its brief for an en banc rehearing, WSU argued that Demers’ plan was “professional speech” — not speech related to scholarship or teaching — and, therefore, did not deserve constitutional protection.

However, a three-judge panel of the appeals court, in its revised opinion issued Jan. 29, ignored the “professional speech” argument and reiterated that First Amendment protection should be extended to speech that is “related to scholarship and teaching” and deals with “matters of public concern.”

“It may in some cases be difficult to distinguish between what qualifies as speech ‘related to scholarship or teaching,’” lead judge Fletcher wrote in the revised opinion. “ ... But this is not such a case. ... The 7-Step Plan ... was a proposal to implement a change at the Murrow School that, if implemented, would have substantially altered the nature of what was taught at the school, as well as the composition of the faculty that would teach it.”

The plan, which Demers submitted in January 2007, recommended, among other things, that the Murrow School remove one of its non-professional academic programs, give more power to untenured professional faculty, and seek accreditation for the remaining programs in journalism, public relations and advertising. Demers was serving on a School restructure committee when he developed the 7-Step Plan.

Demers filed suit against then-Murrow Director Erica Austin and three other administrators in 2010, claiming he was punished in annual reviews for proposing the plan and for writing a controversial book.

“‘Related’ appears to be the operative word in the appeals court decision,” Demers said. “It doesn’t matter what role you are playing at a university — teacher, scholar, faculty senator, committee member, or pain-in-the-ass gadfly — if you, as a professor, are speaking on a matter of public concern that is related to teaching and/or research, you are protected from retaliation, according to the court.”

Demers added that “the decision helps preserve the century-old principle of shared governance, which distinguishes academia from virtually every other form of organization in modern society. Shared governance enhances the search for truth and knowledge.”

Since 2006, federal courts have denied free-speech protection seven out of eight times to faculty who, like Demers, spoke in their service-related roles.

The Demers v. Austin et al. case is the sole exception to the rule.

“I hope other federal courts will realize that truth in scholarship and teaching depends not just upon ideas, but on how universities are structured and maintained and how power is distributed.”

WSU has 30 days to appeal the case to the U.S. Supreme Court.

A copy of the appeal court’s revised opinion is posted at www.acfcl.org

Shared Governance “Is Only One Court Decision Away from Annihilation,” But Do Professors Really Care?

By David Demers

Executive Director

American Center for Civil Liberties

When I filed a federal free-speech lawsuit in 2010 against four administrators at Washington State University (Demers v. Austin), where I was a tenured associate professor of communication, I did not expect a lot of support from anyone, including faculty.

Professors are, after all, suspicious by nature.

Many tend to view free-speech lawsuits, even from their own kind, as a cover for personal grievances.

“Demers is a troublemaker,” some said at WSU.

No surprise there.

But three years later — after a three-judge panel of the Ninth Circuit Court of Appeals rejected WSU’s argument that professors do not deserve free-speech rights when they speak in their service-related roles — I am puzzled by the lack of concern among faculty across the country for protecting shared governance, which is only one court decision away from annihilation.

Since the 2006 U.S. Supreme Court 5-4 decision in Garcetti v. Ceballos, the lower federal courts have ruled seven out of eight times that professors do not deserve free-speech rights when they (continued)

KU Administrators Fail to Appreciate Uncivil SpeechSome National Rifle Association members went viral after reading a tweet from University of Kansas professor David Guth, who, in reference to the shootings at the Naval Yard in Washington D.C., declared that "blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters."

But some journalists and professors across America are even more disturbed about the response of Guth’s bosses to the controversy.

"While the First Amendment allows anyone to express an opinion, that privilege is not absolute and must be balanced with the rights of others. That’s vital to civil discourse," Ann Brill, dean of the William Allen White School of Journalism and Mass Communication, said in a prepared statement. "Professor Guth’s views do not represent our school and we do not advocate violence against any group or individuals."

"The right to express a political opinion is absolute in America. While there are very narrow exceptions to First Amendment protections, they largely involve speech that is inherently criminal, including distributing child pornography,

The lasting legacy of broadcast legend Edward R. Murrow wasn't his integrity or his journalistic skills, as many journalists assert. It was, as I have argued elsewhere, his belief that the key role of journalism in society was to promote and protect due process and other civil liberties enshrined in the Bill of Rights.

Murrow died in 1965. But were he alive today, what would he think of the National Security Agency's secret campaigns of spying on the e-mails and telephone records of U.S. citizens and the actions of Edward Snowden, the computer systems analyst who exposed the campaigns?

Before I answer that question, let me provide a little background for readers unfamiliar with Murrow.

Murrow worked for CBS News from 1935 to 1960. In 1954, he broadcast a TV news show which implied that U.S. Sen. Joseph McCarthy had falsely accused hundreds of Americans of being communists and had violated their due process rights in and out of senate hearings. The U.S. Senate agreed, censuring McCarthy late in 1954.

Murrow wasn't the first to criticize McCarthy, who made national news in 1950 when he claimed several hundred communists worked for the U.S. government. But many historians believe Murrow's broadcast was the tipping point that

I will never forget the moment in 1990 when George A. Donohue, one of my professors of sociology at the University of Minnesota, asked me and a half dozen other students that question during a graduate seminar.

We students — full of idealism and a desire to believe that Americans embraced Age of Enlightenment ideals such as liberty — desperately wanted to say "freedom."

But we sensed a setup.

"Security," several of us blurted out at the same time.

Professor Donohue’s face broke into a big, approving grin.

After watching people in action in social institutions for more than four decades, I believe Donohue is generally right. People do prefer security over freedom.

Even in the liberal social sciences and humanities, faculty rarely challenge administrators who engage in anti-democratic decision-making or disrespect the free-speech rights of faculty or staff. Faculty fear retribution or ostracization.

However, some leftist libertarians believe the case of Edward Snowden — the U.S. government contract employee who revealed that the United States government was spying on its own citizens — may prove to be an exception to the security-over-freedom theory.

Five out of eight major public opinion polls conducted since Snowden blew the whistle show that a majority of Americans disapprove of the National Security Agency’s telephone and Internet domestic spying program.

Although the question wording varied from poll to poll, the results clearly show that, at a minimum, Americans have not given up on freedom as an ideal. This is especially true for young people, who, by a 2-to1 margin, believe that Snowden was right to expose the spying campaign. To some extent, the findings for young people remind me of the anti-Vietnam War movement, when college students embraced Enlightenment ideals more than any other generation before them.

But the story of Snowden and NSA’s domestic evesdropping program has yet to be played out.

My bet is that security eventually will win.

Public opinion, I predict, will swing solidly against Snowden and in support of controlled domestic spying partly because American news media reports and talk shows are failing to provide a balanced perspective. They are failing to include intelligent news sources who are defending Snowden and civil liberties.

For example, I have yet to see a representative of the American Civil Liberties Union on one of those shows, even though that organization has filed a federal lawsuit challenging the constitutionality of the NSA program.

The vast majority of news sources, as usual, are mainstream governmental bureaucrats and politicians, who are framing Snowden as either a traitor (Republican John Boehner) or, at best, as an individual who has violated anti-espionage laws (Democrat Nancy Palosi). I have yet to see one mainstream official declare that Snowden should not be prosecuted if it turns out that the NSA over-reached its authority.

The mainstream bias of print and television news has been well documented by mass communication researchers for more than four decades. Shortly after 9/11, for example, ABC news staff screened potential on-camera news sources and rejected those who it thought would provide an understanding of the possible motives of the 9/11 attackers, according to one academic research study.

The turning point for public opinion regarding Snowden and civil rights will come when he is put on trial or when it is clear he cannot be extradited. American bureaucrats will make an example of Snowden, hammering home the point that the oath not to reveal government secrets is more sacred than the act of violating American’s civil liberties.

Editor's Note: On November 30, 1917, anti-war activist Louise Olivereau was convicted for sending letters and circulars urging young men to refuse to fight in World War I. This is her brief story.

Louise Olivereau was the daughter of French immigrants. She was educated as a stenographer at what is now called Illinois State University. She worked for the Industrial Workers of the World (IWW), also called the Wobblies.

Because she was dedicated to the cause of civil liberties, Olivereau spent $40 (or $617 in today’s dollars) on printing and mailing letters and circulars encouraging young men to resist military service by becoming conscientious objectors. In other words, she asked them to refuse to be part of the war and to take action, by protesting the war.

Along with the Sedition Act, the Espionage Act was passed into law. It was against the law to criticize the military. Examples of espionage include causing insubordination in the armed forces, obstructing the recruitment of soldiers, and using the mails to do this. During this time, any speech that was disloyal, profane, or abusive, could land a person in jail.

The IWW opposed the war, arguing that workers were dying in a conflict that benefited the capitalists (owners of industries), but not the workers. They were targets for persecution by authorities, because of their vocal and confrontational tactics.

On November 30, 1917, Olivereau was convicted of sedition, because she mailed letters and circulars. When convicted, she admitted to sending the letters, but she claimed that she didn’t advocate forcible resistance to the draft law. Also, Olivereau pointed out that most of what she wrote was available in the local public library.

In my opinion the jury wrongly convicted Olivereau. The judge sentenced her to 10 years in prison. She served 28 months in the state penitentiary.

Oddly, Olivereau's case was not publicized in the IWW newspaper, because the editors didn’t like her anarchist comments. Anarchists don’t like government.

Teacher Who Stomps on American Flag Ironically Learns America Is Not Bigger than Its Symbols

A South Carolina high school teacher who praised America for emphasizing freedom and principles over symbols discovered last month that he was wrong.

The Lexington-Richland Board of Education in Chapin, South Carolina, fired Scott Compton on Jan. 14, 2013, for stomping on an American flag during a class in which he attempted to show students that principles like freedom and democracy are more important than the material objects representing those principles.

"Sadly, the board's decision to fire Compton means that, to some Americans, symbols are more important than principles," said David Demers, director of the non-partisan, not-for-profit American Center for Civil Liberties. "The elevation of symbols over freedom and democratic principles often precedes the slide into totalitarianism. Hitler's Germany and Stalin's Soviet Union are two good examples."

Compton has appealed his firing. The board is expected to make a decision on March 5, 2013. It is not clear whether Compton will file a free-speech lawsuit if it rules against him.

The recent decision of Scott Compton, the Chapin High School English teacher who stomped on an American flag during a lesson about symbolism last year, to resign from his position at the end of the 2013 school year is another example of how difficult it is for one individual to take on a large, powerful bureaucracy.

Compton cited personal and family reasons, according to a statement released jointly by him and the Lexington-Richland Board of Education. He has been on paid leave and apparently will continue to draw his salary to the end of the school year.

One factor that usually discourages aggrieved parties from fighting free-speech cases is legal costs, which can easily run into the hundreds of thousands of dollars. In addition, bureaucracies often pile on unrelated charges to bolster their case.

For example, in Compton’s termination letter, obtained by The State newspaper through a Freedom of Information Act request, the board's superintendent said the flag stomping was the latest incident in “a pattern of poor judgment."

The letter cited as grounds for the teacher’s dismissal claims that Compton allowed a liquor advertisement to appear in Chapin High School’s student newspaper while he was the faculty adviser and that he had failed to properly communicate with other school staff members. A "failure to communicate" is frequently used by bureaucracies in an effort to cover up a free-speech violation (see The Lonely Activist). The student newspaper won many journalism awards and Compton was a good teacher who was nominated for top teaching awards on several occasions.

The Lexington-Richland school district does not have a policy regarding treatment of the flag, but school officials have said Compton violated conduct expected of a teacher even though the U.S. Supreme Court has ruled that descretion of the flag is protected under the Constitution.

Statement Feb. 21 by Compton attorney Darryl Smalls

In regards to Mr. Compton’s amended Notice of Termination letter, of which to date he has not officially received from the school district, I offer the following:

The amended termination letter is nothing more that an attempt to justify Mr. Compton's termination and signifies the weakness in the original letter of termination. The letter describes the flag incident as the latest in a series that superintendent Stephen Hefner said demonstrates "a pattern of poor judgment."

This is simply a ploy to pull at any straw the district can find to discredit and terminate Mr. Compton.

The fact of the matter is that in 7 years at Chapin, the only time he was ever called in for reprimand was December 13, 2012 [the flag-stomping incident]. Even at this time, his principal, Mr. Akil Ross stated that Mr. Compton was one of his best teachers.

The added offense concerns the Chapin newspaper of which he was the sponsor. The essence of the added offense refers to an information filer that came from The McClatchy-Tribune, which is used by hundreds of high school newspapers nationwide and is paid for by the school district. My client does not endorse the consumption of alcohol and in fact does not drink alcohol himself.

The main factor here is that the Chapin principal has prior review. This means that all final newspapers were sent to him for approval prior to printing. After this incident, we have e-mails from Principal Ross stating this was not Mr. Compton’s fault as he took full responsibility. In an e-mail to the Chapin High School staff on February 29, 2012, Ross stated the following: "During the editing process of the school newspaper, I failed to focus on the purchased advertisements/inserts. I only reviewed student work. As a result, inappropriate material has been printed in our newspaper.". In an email to Mr. Compton dated also on February, 29, 2012 regarding the matter, Mr. Ross stated, “You are one of the best teachers I have ever worked with and I truly respect you. Your leadership on The Claw has brought so much to this school and the students you serve. I do not want you to apologize. I want you to keep the fight for literature and self expression. Our kids need you.”

In addition Mr. Ross stated that Mr. Compton was one of his best teachers. During his time with The Chapin Claw, the newspaper has won close to twenty awards from the SC Scholastic Press Association, including four as recently as fall 2012. After this event, Mr. Ross also selected him to pilot a new mass communication program for Chapin High School.

In regards to the support staff issue, Mr. Compton contacted the administration in regards to a teacher who was being let go due to budget cuts. The incident was handled privately with a phone call during the summer of 2009. In fact, Mr. Compton has the support of the majority of the faculty and has been nominated for teacher of the year several years while teaching at Chapin High School.

He has served on the faculty board as well as serving as faculty president. In addition, he was asked to head not only the newspaper, but also the Literary Magazine, and other various clubs and committees.